As an assistant town solicitor, I want to offer my breathalyzer-refusal prosecution services to other towns. Can I pitch police chiefs or solicitors directly, and can I mail the offer to each town's solicitor?

Plain-English summary

The inquiring attorney was an assistant solicitor for Town A, responsible for all misdemeanor prosecutions brought by Town A's police department. Town A would soon assume all breathalyzer refusal prosecutions, and the attorney wanted to offer his services to other towns for such prosecutions. The attorney asked whether it was improper to offer these services directly, and whether the communications could be sent to each town's solicitor's office.

The Panel applied Rule 7.3 (direct contact with prospective clients). Rule 7.3(a) bars a lawyer from soliciting professional employment, in person or otherwise, from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive is the lawyer's pecuniary gain. Rule 7.3(b) sets requirements for written communications, including that they be plainly marked "advertisement" on the envelope and at the top of each page in larger type, and that a copy be sent to the Supreme Court Disciplinary Counsel and retained by the lawyer for three years.

The Panel concluded that the attorney may not solicit professional employment from prospective clients in person when the motive is pecuniary gain, so a direct solicitation to the towns' police chiefs would not conform to Rule 7.3(a). Under Rule 7.3(b)(1), however, the attorney may send written communications to prospective clients provided each is plainly marked "advertisement" and a copy of each letter is sent to Disciplinary Counsel.

Currency note

This opinion was issued in 1994 (Opinion 94-20, issued March 23, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 7.3 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, and the solicitation rules have been amended over time; solicitation restrictions have also been shaped by later First Amendment decisions. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer pitch prospective government clients in person for paid work?

A: The Panel concluded no, under Rule 7.3(a), when a significant motive is the lawyer's pecuniary gain; a direct in-person solicitation to town police chiefs would not conform to the rule.

Q: Can the lawyer mail the offer to town solicitors instead?

A: Yes, under Rule 7.3(b), if the written communication is plainly marked "advertisement" and a copy is sent to Disciplinary Counsel (and retained for three years).

Q: How must the "advertisement" marking appear?

A: On the envelope and at the top of each page, in type one size larger than the largest type used in the communication.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 7.3 (direct contact with prospective clients), the analog of Model Rule 7.3. Rule 7.3(a) barred in-person or other direct solicitation of a prospective client, absent a family or prior professional relationship, where a significant motive was pecuniary gain. Rule 7.3(b) permitted written solicitation subject to the "advertisement" marking, the copy to Disciplinary Counsel, and a three-year retention requirement.

Citations and references

Rules of Professional Conduct:

• MR 7.3 / RI RPC 7.3(a), (b) (direct contact with prospective clients; in-person solicitation bar and written-communication requirements)

See also

• RI EAP Opinion 91-25: a bankruptcy solicitation letter must be marked "advertisement" under Rule 7.3
• RI EAP Opinion 90-18: a business-owner mailer needs a larger "advertisement" marking and a specialization disclaimer

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2094-20.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

0646
FINAL

ETHICS ADVISORY PANEL
OPINION #94-20 REQUEST #475
Issued March 23, 1994

The inquiring attorney is an assistant solicitor for Town A, responsible for all misdemeanor prosecutions brought by Town A's police department. Soon, Town A will assume all breathalyzer refusal prosecutions. The inquiring attorney would like to offer his/her services to other towns with regard to breathalyzer refusal prosecutions. The inquiring attorney asks if it is an improper communication to offer such services directly and whether these communications may be sent to the solicitor's office in each town.

The inquiring attorney may look to Rule 7.3 entitled "Direct Contact With Prospective Clients" for guidance. That rule states the following:

(a) A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, or by other communication directed to a specific recipient and not meeting the requirements of paragraph (b) of this rule.

(b) Written communication.

(1) Written communication to prospective clients with whom the lawyer has no family or prior professional relationship are subject to the following requirements:

(a) Such written communications shall be plainly marked "advertisement" on the face of the envelope and at the top of each page of the written communication in type one size larger that the largest type used in the written communication.

(b) A copy of each written communication shall be sent to the Supreme Court Disciplinary Counsel and another copy shall be retained by the lawyer for three (3) years. If written communications identical in content are sent to two (2) or more prospective clients, the lawyer may comply with this requirement by sending a single copy together with a list of the names and addresses of persons to whom the written communication was sent to the Supreme Court Disciplinary Counsel as well as retaining the same information.

The Panel concludes that the inquiring attorney may not solicit professional employment from prospective clients in person when the motive is the lawyer's pecuniary gain. Therefore, a direct solicitation by the attorney to the town's police chiefs would not conform to Rule 7.3(a). Pursuant to Rule 7.3(b)(1)(a) and (b), the inquiring attorney may send written communications to prospective clients provided that the communication is plainly marked "advertisement" and a copy of each written letter shall be sent to the Disciplinary Counsel.